QUESTION. No. Below are. Proposal; more. documents? 1 of 28

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1 REQUEST FOR PROPOSALS No MAINTENANCE SERVICES FOR COMMUTER RAIL OPERATIONS QUESTION NS AND ANSWERS Below are questions VRE received as of October 23, 2014 at 11:00 A.M. EST., with responses. Whenever possible, questions are presented as originally asked. Otherwise, the question is presented to capture the main thrust or idea of the question or inquiry. PART A RFP INFORMATION 1. Will VRE provide prospective Offerors with copies of the Proposals submitted in response to RFP No for Operating and Maintenance Services for Commuter Rail Operations as well as the resultant Contract and Contract Amendments?? Yes. See the following attachments: Attachment No. 1 Amtrak Proposal; Attachment No. 2 Bombardierr Mass Transitt Corporation Proposal; Attachment No. 3 Connex Railroad LLC Proposal; Attachment No. 4 Keolis Rail Services America Proposal; Attachment No. 5 Contract No ; andd Attachment No. 6 Amendments to Contract No Section 1. Notices for Offerors 1.3 Procurement Schedule 2. Will VRE grant an extension to the question submittal deadline to allow for a thorough review of the RFP documents? more No. 3. Will VRE consider an extension to the due date for Proposals? Yes. See Addendum No. 1, page 13R. 1 of 28

2 PART B SCHEDULE Section 3. Special Terms and Conditions 3.1 Term of Contract 4. To ensure comparable responses to the Proposal requirements, should Offerors assume an effective date of February 1, 2015? A defined date is critical not only for VRE evaluation purposes but also for Offerors since there is a liquidated damage assessment of $10,000 per day for incomplete mobilization. See Addendum No. 2, page 27R. 5. Can VRE identify a minimum period of time VRE is able to commit to an extension prior to the expiration of the Base Period (i.e. 30 days)? This would allow for preparation of required Contract submittals and appropriate notification to Subcontractors and work force employees of either continuation or termination of their services or employment. See Section 3.1D., VRE will issue a preliminary notice within ninety (90) calendar days prior to the expiration date of the Base Period and each Option Year Period. 3.3 Incentives 6. Can VRE provide the past five (5) years of On Time Performance (OTP) and Fleet Availability history with reasons for delays included? Refer to the performance measures posted on VRE s website at measures.pdf. 7. Will VRE provide records of any bonus payments made to Keolis? No bonuses have been paid to Keolis. Currently, incentives are paid for train operations and maintenance of equipment combined. 8. Can VRE clarify whether the OTP calculation for the incentive is inclusive of all delays or equipment related delays only? See the table in Section 3.3C. for clarification. 2 of 28

3 3.4 Liquidated Damages 9. In accordance with the practice of the industry, liquidated damages shall be an assessment of the damages suffered by VRE and accordingly, they shall be the sole and exclusive remedies. The provision of a cap is also fairly standard in the industry and would allow the Contractor to better establish its exposure, while still maintaining significant protection for VRE. Therefore, will VRE add an additional section to read as follows: The Liquidated Damages contemplated in this section shall be the sole and exclusive remedy for the default they address. There shall be an aggregate annual cap on all liquidated damages assessed equal to five percent (5%) of the annual Contract value. VRE will entertain imposing a cap as part of negotiations with the top ranked Offerors. 10. Will VRE provide records of any liquidated damages paid by Keolis? Since the beginning of Contract No , Keolis has paid approximately $100,000 in liquidated damages relative to maintenance of equipment. 11. Will VRE confirm that the liquidated damages provided for in the Contract shall only be assessed by VRE in the event that the Contractor and/or its Subcontractors are responsible for their occurrence? Yes, as determined by VRE. 12. In reference to Subsection 3.4.1, can VRE provide the last two (2) years of maintenance history for the locomotive and car fleets? Maintenance records are maintained at the warehouse at the VRE Crossroads Yard in hard copy format. A tremendous effort would be required to provide these records electronically. See Addendum No. 2, pages 13RR and 16R for the date and time allotted for Offerors to view these records at the VRE Crossroads Yard warehouse located at 9400 Crossroads Parkway, Fredericksburg, VA With respect to Subsection 3.4.3, can VRE clarify what constitutes an incomplete mobilization? An incomplete mobilization is the failure to complete the Mobilization Plan, in whole or in part, as determined by VRE and described in Section 9 Mobilization and Transition. 3 of 28

4 3.5 Service Changes 14. Is it correct that in accordance with Section 3.5.1B., VRE may, at any time, transfer any or all of the Contract services to a party other than the Contractor? Yes. 15. In the event that such transfer of the Contract services occurs for VRE s convenience, is it correct that the Contractor s rights and remedies under the General Terms and Conditions, Section 13 Termination for Convenience, will apply? Yes. 16. Furthermore, can VRE confirm that in the event that such transfer of the Contract services occurs as a result of the Contractor s default and/or unsatisfactory performance, the Contractor would be provided with a reasonable right to cure prior to VRE transferring such Contract services? The transfer described in Section is not a termination for default instance. If VRE decides to transfer, it cannot be addressed through a cure. 3.6 Section 13(C) Labor Protection 17. Section 3.6 states that the Contractor would be financially and legally responsible for any claims arising out of Section 13(c) of the Federal Transit Act. Can VRE confirm the understanding that the new Contractor would not be responsible for Section 13(c) claims arising from the previous Contract, filed by any employees of previous Contractors and/or section 13(c) claims potentially triggered due to actions undertaken by VRE (i.e. termination for convenience)? Yes. The Contractor is responsible for 13(c) claims arising out of the Contractor s performance under the Contract. 18. Are there any federal 13(c) labor protection agreements that apply to the employees performing the scope of services for this Contract? If so, can VRE provide applicable agreements in effect? Yes, VRE operates under a 13(c) agreement entered into by the Potomac and Rappahannock Transportation Commission (PRTC). The applicable agreement will be forthcoming. Offerors must monitor the website for the posting of the agreement as Attachment No of 28

5 19. Can VRE clarify if any VRE 13(c) protections apply to the employees performing the scope of services for this Contract? If so, can VRE provide all applicable agreements in effect? No, not at this time. 20. If any 13(c) protections apply, it is assumed Offerors will be required to assume all existing covered employees and their current labor agreements, please furnish a list of craft unions affected for the performance of these Contract services and seniority rosters for each indicating current craft, work assignment, rate of pay and benefits so that Offerors can accurately determine the costs associated with the required assumption of this labor force. Additionally, also provide the current Contractor s organization chart including non covered staff positions, number of staff in each position, length of employment, work assignment and rate of pay and benefits VRE does not have any labor agreements with any union. responsibility to identify and address any organized labor issues. It shall be the Contractor s 21. Is the labor force utilized by the current Contractor unionized? No. 22. If yes, can VRE provide the name of the Union(s) representing the labor force? Not applicable. 23. Can VRE provide the current labor agreement(s) in effect? Not Applicable. 3.7 Availability of Employee Records 24. With respect to Section 3.7A., can VRE share the total head count of labor by craft and also management? There are approximately forty five (45) to fifty five (55) people, inclusive of craft and management, currently assigned to perform this work. 25. In reference to Section 3.7B., can VRE share the current labor rate for mechanic personnel? Current non burdened labor rates range from approximately $15 to $35. 5 of 28

6 26. VRE s access and review of employee records shall always be subject to applicable privacy laws. Therefore, will VRE add the following words to this section, subject to any applicable privacy laws, after the words Upon request of VRE? No. The Contractor will need to get appropriate releases at the time of employment Force Majeure 27. The Force Majeure provision provides that strike, lockout, and labor dispute shall not constitute an event beyond the Contractor s control if the Contractor fails, as soon as reasonably possible, to seek an order of the court or administrative agency to prevent the continuation. However, there might be situations where it would be futile to seek obtaining an order of the court or administrative agency (highly unlikely to obtain such an order). Will VRE thus delete Section , and incidentally include all labor disputes as an event of Force Majeure? VRE is sufficiently protected through Section , notably by Contractor s obligations to use all reasonable efforts to minimize or remove such event of Force Majeure. VRE will not seek to hold the Contractor accountable where the failure to seek judicial or administrative relief would be futile. However, this is a judgment VRE will make, not the Contractor. 28. Section states that conditions caused by a storm or other weather condition shall not constitute an event beyond the Parties control and shall not be the basis for excuse. It is understood that weather itself is not a Force Majeure event, but that if weather causes a condition to arise (such as track or facility outages) that would prevent the Contractor from performing Contract duties, then such non performance by the Contractor would be excused. Can VRE confirm that this is accurate? Each situation and the circumstances that gave rise to the non performance will be assessed. If the cause is beyond the Contractor s control, such as track failures, then the provisions of Section shall control. 29. Based on the Force Majeure provision the Contractor would be excused (and not found liable and/or have to indemnify VRE) for anything out of its control. Can VRE confirm that this notably includes anything that resulted from improper condition of the infrastructure, caused by third parties (including improper operation and non compliance with operations instruction) and/or VRE s failure to provide materials as per the Contract? The language of Section controls. See the response to Question No of 28

7 3.13 Subcontracting 30. Will VRE add to this Section that VRE s consent under this Section will not be unreasonably withheld? No. However, VRE will not unreasonably withhold consent. 31. Can VRE provide a list of the current Contractor s Subcontractors providing support for the maintenance of equipment and facilities services? 1. Drummac 2. CraneMasters 3. Kaeser 4. Hepaco/IMS (VRE) 5. ServiceMaster (VRE) 32. With respect to Section B., should there be a labor dispute, such as a strike, and the Contractor is unable to terminate any picketing or disruption despite using all reasonable efforts to minimize such disruption, it would seem unfair and contrary to the purpose of a Force Majeure clause that the Contractor shall be held liable to indemnify and reimburse VRE for legal and related expenses. Will VRE consider deleting Section B.? No Work Site Damages 33. This Section states that any damages resulting to VRE or Railroad property, existing utilities, or finished surfaces from the performance of this Contract shall be repaired to the satisfaction of VRE at Contractor s expenses. Will VRE add the underlined language below to Section 3.21, which would better express VRE s intent that the Contractor shall be only responsible for repairing the damages it, or it Subcontractors, may cause to VRE s property in the performance of this Contract? Any damages resulting to VRE or Railroad property, existing utilities, or finished surfaces from the performance of this Contract, caused by Contractor or its Subcontractors, shall be repaired to the satisfaction of VRE at the Contractor s expense. VRE may request that the Contractor, through a task order, make repairs to items not damaged as a result of the Contractor s performance on the Contract. See Addendum No. 2, page 39R. 7 of 28

8 3.24 Miscellaneous 34. Section specifies VRE reserves the right to examine all financial records of the Contractor. Considering that the pricing of the Contract is based on a fixed price, can VRE confirm that its right to examine the Contractor s financial records shall only apply to financial records relevant to the Contract or relating to task orders that might be issued in accordance with this Contract? No. However, VRE reserves the right to examine all financial information as may be required to determine the Contractor s financial responsibility. Section 4. Invoicing and Payment 4.2 Payment Provisions 35. With respect to Subsection 4.2.1, since the services are primary labor based, will VRE consider modifying the annual adjustment language so that the index cannot be negative? This will remove unnecessary risk associated with the possibility of a negative index being applied when the reality is that wages will not be decreased for the workforce. See Addendum No. 2, page 43R. PART C SCOPE OF SERVICES Section 5. Maintenance of Equipment and Facilities 5.1 General 36. With respect to Section 5.1B., can VRE provide any data gathered in support of the VRE life cycle maintenance strategy? Data gathered in support of VRE s life cycle maintenance strategy will be shared with the Contractor once a Contract is executed. The requirements, in part, for this RFP is to provide VRE with a highly skilled workforce and management team required for this strategy. 37. Can VRE provide Offerors with a copy of its lifecycle maintenance strategy/plan to provide a more complete description of the long term anticipated rolling stock and facility maintenance activities expected over the five (5) year base Contract period and any option years potentially awarded? It is VRE s intent to work with the Contractor to deploy the life cycle maintenance strategy throughout the five (5) year Base Period of the Contract. 8 of 28

9 38. With respect to Subsection 5.1.1F., can VRE define repairs on specific support equipment? and what the Offeror s labor and cost obligations are? See Subsection List of Facilities. VRE is not aware of the specific costs. 39. In accordance with Subsection 5.1.1P., can VRE provide more information on the scope of services for track maintenance? Track maintenance shall include inspection and repair of ties, frogs, switches and rail. 40. Who is responsible for procuring materials for yard maintenance? VRE. 41. Can VRE provide detailed track charts (with dimensions) for the VRE Crossroads and Broad Run yards allowing Offerors to effectively respond to the track maintenance requirements outlined in the RFP? See Attachment No. 7 Crossroads Yard Maintenance Facilities Drawings and Attachment No. 8 Broad Run Yard Maintenance Facility Drawings, which include yard site plans. 5.3 Performance Requirements 42. With regard to Section 5.3.1B., can VRE provide a sample(s) of VRE fleet documentation? VRE will work with the Contractor to develop documentation. 43. In accordance with Subsection 5.3.2, it is understood that the Contractor will only be responsible for costs of repairs when it is proven that damage to VRE track or buildings are the Contractor s fault? Can VRE confirm that this understanding is correct? See the response to Question No Rolling Stock 44. Can VRE provide annual train mileage for the last three (3) years? Year Annual Train Mileage 373, , ,019 9 of 28

10 45. Can VRE provide annual revenue vehicle mileage for the last three (3) years? Year Annual Revenue Vehicle Mileage 2,087,408 2,081,168 2,032, Can VRE provide annual coach and locomotive mileage? Year Annual Coach Mileage 2,404,409 2,384,147 2,356,081 Year Annual Locomotive Mileage 372, , , In accordance with Subsection 5.5.1A., as maintenance related liquidated damages apply to daily demand, will VRE define the train set configuration requirements of the number of cars per train set including the number that need to be restroom equipped? In addition to Section 5 Maintenance of Equipment and Facilities and associated appendices as well as via (current consist configurations), the goal is to not have a passenger walk more than two (2) car lengths to find a restroom on each train set. 48. Subsection 5.5.1A. indicates that required maintenance and servicing activities shall be performed on seven (7) train sets at Crossroads and five (5) train sets at Broad Run. This Section also states in part Spare equipment shall be ready, if required, for revenue service in support of the passenger train schedule. Can VRE clarify if the requirement is available spares of vehicle types or a protect train set and the configuration of same? There is no current requirement for a spare train set to protect the service. Three (3) locomotives are assigned as protect units. All available cars (fifteen (15) in total) are available for maintenance or service spares. 10 of 28

11 49. Will VRE define the spare equipment allotment typically allocated to each facility for protect, spare and periodic maintenance activities? A protect locomotive is expected at each location (Crossroads, Broad Run and Ivy City). The Contractor shall manage the spare coaches to ensure maintenance and repair activity is accomplished and normal service levels are maintained. 50. With respect to Subsection 5.5.1C., can VRE clarify what Offerors shall assume as a schedule of train set storage at L Enfant Station? VRE does not currently store any equipment at this location. 51. In accordance with Subsection 5.5.4A., since Offerors are pricing year one (1) of the Contract only, are Offerors to assume ninety three (93) gallery cars for pricing purposes and as the number of gallery cars changes (as described in Note 1, 2 and 3), the increase in cars will be handled through the Changes clause of the Contract? Yes, a Contract Amendment will be executed by both parties. 52. Regarding the appendices referenced in Subsection 5.5.2G., can VRE confirm that the maintenance procedures and practices included in Appendices 6 and 7 are currently OEM compliant? If not compliant, do Appendices 6 and 7 comply with the technical requirements detailed in the scope of services to VRE s satisfaction? The appendices provided are samples of documents currently in use by VRE. 53. With respect to Subsection 5.5.5D., is the Contractor only responsible for the clean up of its own spills or is the Contractor also responsible for the clean up of spills by VRE s fuel and oil vendors? The Contractor shall provide VRE a spill prevention plan that addresses all spills. 54. Can VRE provide the last three (3) years of running repair, medium repair and heavy repair history performed on the rolling stock? No. Our current system to account for these activities does not break out the repairs by different types. 11 of 28

12 5.6 Facility Use and Maintenance 55. Can VRE provide detailed building and shop drawings for the VRE Crossroads and Broad Run facilities allowing Offerors to effectively respond to the facility maintenance requirements outlined in the RFP? Yes. See the following attachments: Attachment No. 7 Crossroads Yard Maintenance Facilities Drawings Attachment No. 8 Broad Run Yard Maintenance Facility Drawings Attachment No. 9 Crossroads Yard Maintenance Facilities Technical Specifications Attachment No. 10 Broad Run Yard Maintenance Facility Technical Specifications Attachment No. 11 Crossroads Yard Warehouse Facility Drawings Attachment No. 12 Crossroads Yard Warehouse Facility Technical Specifications Attachment No. 13 Crossroads Yard Train Wash System Operation and Maintenance Manual 56. To effectively respond to this requirement, specifically tasks and procedures, can VRE provide the manufacturer, make, model, manufacture date, technical specifications and maintenance manuals for the following included in Subsection 5.6.2C.? Cranes Jacks Fall protection systems Fire alarm systems Yard and facility access control Lube oil system All buildings and building systems Load banks See the response to Question No With regard to Subsection C.19., can VRE clarify whether or not yard and facility access control is the same as stated in Subsection J.3 that includes automated gate and door controls, which are identified as not being included in the Contract? Subsection J.3 refers to the card readers that activate the access gate(s) and turnstile, which are not included as part of this Contract. However, all of the mechanized components and systems are included in this Contract. 12 of 28

13 58. With respect to Subsection 5.6.4E., can VRE provide a copy of the record log for each maintenance facility so Offerors can more accurately address the facility maintenance activity? A record log to more accurately address facility maintenance activity does not currently exist. 5.7 Materials Management 59. In accordance with Section 5.7 and Subsection 5.6.5A., will VRE confirm if the Contractor is responsible for the purchase of cleaning supplies and tools for facility cleaning and housekeeping? Yes. 5.9 Personnel/Staffing and Training 60. Will VRE add Section to the Request for Proposals as follows? No. Nothing in this Contract shall require the Contractor to perform any service or take any action that would violate any labor laws and/or any term or condition of any labor agreement between the Contractor and any organization representing the Contractor s employees or applicable to the Contractor. Section 6. Management 6.3 Personnel/Staffing 61. Can the prospective Contractor contact current staff members of the incumbent Contractor prior to the transfer date and after an award is made? If so, what obligation will the incumbent have to provide contact information for current staff members? The prospective Contractor shall work directly with the incumbent Contractor. 13 of 28

14 Section 7. System Safety and Security 7.1 General 62. While the RFP specifies that the Contractor shall prepare a System Safety Program Plan (to be approved by VRE), Section 7.1D. states that Contractor shall comply with all aspects of the VRE System Safety Program. Can VRE confirm the understanding that such VRE System Safety Program will be the System Safety Program Plan prepared by the Contractor and approved by VRE? Otherwise, can VRE provide a copy of such VRE System Safety Program? See Attachment No. 14 VRE Commuter Rail System Safety Program Plan, dated October 22, Emergency Notifications 63. Certain incidents described in 49 CFR 225 are better associated with train operations, rather than maintenance services. Considering the scope of the Contract (limited to equipment maintenance services), can VRE confirm that the Contractor s obligations under Section 7.13A. are limited to incidents solely associated with the equipment maintenance services performed as per the Contract? Yes, equipment and facility maintenance services only Safety Performance Record 64. Since safety exposure associated with most maintenance of equipment and facilities work is related more directly to hours worked as opposed to unlinked trips or revenue/non revenue miles, will VRE consider revising the request to include items G and H only to be reported using the standard frequency recordable rate per 200,000 hours worked? Yes. See Addendum No. 2, page 89R. 14 of 28

15 65. Can VRE provide a definition or clarification on what is meant by hazardous conditions? Per the Military Standard 882, which is the hazard methodology that VRE uses per its SSPP, a hazard is defined as, A real or potential condition that could lead to an unplanned event or series of events (i.e. mishap) resulting in death, injury, occupational illness, damage to or loss of equipment or property, or damage to the environment. A hazardous condition is any condition that is real or potential that could lead to an adverse event as described above. VRE s philosophy under its SSPP is that all human conditions pose a danger, but everywhere they exist they must be addressed by mitigations to reduce or eliminate the severity and frequency of any foreseen adverse event. Section 8. Information Systems Management 8.2 Computer Network 66. Is VRE or the Contractor responsible for providing, maintaining and purchasing supplies for photo copiers/printers for both maintenance facilities? Will this equipment also be accessed and used by others? The Contractor is responsible for providing, maintaining and purchasing supplies for their sole use at both maintenance facilities. 67. In accordance with Subsection A., VRE will provide internet service. Will the Contractor be able to utilize VRE s internet line to establish its own internal network if necessary to drive printers and access its secure corporate network? Yes. 8.4 Operational Requirements 68. Can VRE identify the current system software being utilized to perform these requirements and any other required electronic work management activity? VRE uses MicroMain primarily for inventory control. There will be minimal data entry requirements by the Contractor. The Contractor shall propose how they intend to manage the requirements of the RFP (e.g. via Microsoft office products, database management system, etc.) including compliance with applicable regulations. 15 of 28

16 69. Will VRE identify by name what system software VRE will provide to the Contractor to perform these requirements and any other required electronic Work Management activities? See the response to Question No The MicroMain software appears to offer a variety of different configurations: Maintenance Lite, Maintenance Basic and Maintenance Premium. Each of these includes a different set of modules. Will VRE confirm which configuration of MicroMain VRE will provide for the Contractor s use and describe the features and capabilities? See the response to Question No Can VRE confirm that use of the MicroMain MMIS is required to perform this Contract and that no other MMIS will be needed to supplement? See the response to Question No Can VRE confirm that MicroMain will maintain records and archive activities for both rolling stock and facilities maintenance and that it will generate all of the periodic reports required by VRE? See the response to Question No Will VRE provide initial and refresher training as needed for MicroMain to the Contractor s users? See the response to Question No Will the historic maintenance activity documents be made available to the Contractor performing work on this Contract? Yes, the documents will be made available upon Contract award. 75. Is the Contractor required to provide any electronic Work Management System software to perform any portion of the scope of this Contract? This shall be determined by the Contractor. 16 of 28

17 Section 9. Mobilization and Transition 9.5 Initial Audit of Mobilization Facilities 76. Does VRE intend to conduct an initial joint audit to determine the condition of the rolling stock? Yes. This shall be included In the Mobilization Plan. 77. Will the facilities joint audit include a determination of the environmental base line? Yes. This shall be included In the Mobilization Plan. Section 10. Environmental Services 10.1 General 78. Can VRE clarify if the costs associated with Section 10 Environmental Services be included under Maintenance of Facilities in the Cost Proposal? This shall be included in the annual fixed price amount Environmental Permitting/Reporting 79. With respect to Paragraph G, is the scheduled separator and track pan cleanings referenced to be incorporated in the base price, or are they handled on an itemized or time and materials basis? This shall be included in the annual fixed price amount Environmental Subcontractors 80. Paragraphs C and D discuss malfunctions in environmental testing equipment and repairs required. Can VRE confirm there are alarms and high/low monitoring gauges for the OWS systems? Yes. 17 of 28

18 81. With regard to Subsection , can VRE provide historic information (from the current Contract) with respect to annual waste volumes generated and disposed of, as well as general characterization (waste profiles) of the waste streams? How are the services under this section billed to VRE presently? Does VRE currently have an approved TSDF list for suppliers? Offerors shall base their price on the annual waste volumes generated by performing the work described within the RFP (e.g. disposal of fuel and oil filters, waste oil, etc.). VRE is currently billed for these services as a fixed fee. No, VRE does not maintain an approved TSDF list for suppliers. PART E UTILIZATION OF DISADVANTAGED BUSINESS ENTERPRISES AND SMALL BUSINESS CONCERNS Section 14. Disadvantaged Business Enterprises Policy 14.1 General 82. Can VRE confirm that there is 0% DBE goal established for this Contract? There is not a specific DBE goal established for this Contract. However, VRE has an overall DBE utilization goal of 8.4%. VRE actively supports and encourages the use of DBE businesses and minority owned or controlled financial institutions. 83. Will VRE provide the year ending DBE utilization report of the current Contractor for the past two (2) completed Contract years and the most current year to date report? VRE reports DBE utilization semi annually for newly executed and completed Contracts only. Interim DBE utilization reports are not available. Section 15. Small Business Concerns Policy 15.1 General 84. Can VRE confirm that there is 0% Small Business Concerns goal established for this Contract? There is not a specific Small Business Concerns goal established for this Contract. 18 of 28

19 PART F PROPOSAL REQUIREMENTS Section 16. Proposal Content, Organization and Format 16.2 Proposal Content 85. Can VRE provide a copy of its existing Rolling Stock Maintenance Plan, Facility Maintenance Plan and Staffing Plan, which is an element of the Management Plan? No. This is an open procurement. Therefore, this information must be withheld. The most up todate versions of the plans will be provided to the Contractor following Contract award. Offerors shall develop original plans to allow for evaluation by VRE s Technical Evaluation Team. 86. Can VRE provide a copy of its existing Emergency Preparedness Plan and System Security Plan? The Emergency Preparedness Plan and System Security Plan are only available to be viewed inperson and upon completion of a non disclosure agreement as this information and its distribution are protected under Federal law. 87. It was stated in the Pre Proposal meeting that VRE would prefer required plans to be concise and to the point. In some cases (for example TAB 9, RSMP), lengthy plans and procedures (SOPs for example) are requested. Can VRE confirm that it will accept representative plans and procedures that demonstrate the Contractor s knowledge and experience? Offerors shall submit plans and procedures sufficient enough for VRE to properly evaluate the Offeror s knowledge and experience. 88. Can VRE clarify if it is the intent of VRE that the Contractor provide offices to be maintained within the VRE service area for mobilization activities or for the duration of the Contract? Yes, for the duration of the Contract. 89. If offices are to be maintained for the duration of the Contract, is it first, acceptable to VRE, and second, is adequate space available at the Crossroads facility, to install a modular office? No, this is not an acceptable option. 19 of 28

20 18. Pricing Structure 18.3 Maintenance of Facilities 90. It is the understanding based on Section F., that VRE will provide all materials required for the Contractor to perform their responsibilities. Is this correct? Yes. 91. Can VRE clarify if the materials element of the referenced requirement in Section 18.3A. should be removed? Materials shall not be removed. 92. If the materials element of the referenced requirement is not to be removed, can VRE provide Offerors with the historical facility maintenance material costs? No. Material costs are currently included in the fixed fee paid by VRE for maintenance of facilities. PART G EVALUATION CRITERIA, CONTRACT EXECUTION AWARD AND CONTRACT Section 22. Evaluation Criteria 22.1 Evaluation Criteria and Weighting Scheme 93. Will VRE allow as demonstration of experience and qualifications of the Offeror, rolling stock maintenance experience that was not performed under jurisdiction of the Federal Railroad Administration? VRE encourages all relevant experience and qualifications be presented by Offerors. 94. Will VRE allow as demonstration of experience and qualifications of the key personnel, rolling stock maintenance experience that was not performed under jurisdiction of the Federal Railroad Administration? See the response to Question No of 28

21 PART H CONTRACT DELIVERABLES Section 25. Surety Bonds 25.1 General Requirements 95. Will VRE accept a performance and payment bond renewed annually and the performance bond in an amount equal to the annual Contract value? Typically, sureties will only commit to issue either annually renewable performance bonds or renewable performance bonds with a maximum initial validity period of three (3) years. Yes, a performance bond renewed annually in an amount equal to the annual Contract value is acceptable. The payment bond must also be renewed annually. See Addendum No. 2, page 146R. Section 26. Certificate of Insurance 26.3 Indemnification of Contractor by VRE 96. How do the Contractor s indemnity obligations included in Section 26.3B. relate to the Contractor s broad indemnity obligations under Section 39, Indemnification, of the General Terms and Conditions? The special terms and conditions control over the general terms and conditions. 97. Does VRE intend to cap or limit the Contractor s indemnity obligations at $5M? See Addendum No. 2, page 149R. 98. Section 26.3B. states that "the Contractor shall indemnify the VRE in accordance with Section 39, Indemnification, of the General Terms and Conditions for all claims arising out of the Contract services with a value up to five (5) million dollars, and shall provide insurance for such claims pursuant to Section 59, Insurance, of the General Terms and Conditions and Section 26, Certificate of Insurance hereof." Section 59 refers to Insurance Coverage Requirements (Section 28.4) which specifies that the liability limit required is $1M occurrence / $2M aggregate. Per the excerpt noted above, the Contractor is to indemnify VRE, via insurance, for up to $5M per claim. However, required insurance is only $1M per claim. Can VRE confirm whether it is VRE s intent to modify the requirement to $5M of insurance per claim? See Addendum No. 2, page 149R. 21 of 28

22 99. Considering the scope of the Contract solely pertains to the maintenance of vehicles (and not the operation), Section 26.3B. specifies the Contractor only needs to indemnify VRE for claims arising from its failure to perform maintenance of the vehicles in accordance with the Contract. Can VRE confirm this is accurate? The indemnity, subject to the cap, is for all claims arising out of the Contractor s performance. PART I INCORPORATED DOCUMENTS Section 28. Exhibits 28.4 VRE Insurance Coverage Requirements 100. What types of claims does VRE intend the Contractor to be protected from as an additional insured under the VRE provided liability insurance plan? See Section An additional exclusion from the VRE provided insurance is that the Contractor will be responsible for any damage to equipment and/or facilities caused by the Contractor up to $250k per occurrence. Is that accurate? Yes Is $250k per occurrence the amount of the deductible under the VRE provided liability insurance plan? No Does the VRE provided liability insurance plan insure and protect the Contractor for any damage to equipment and/or facilities caused by the Contractor in excess of $250k per occurrence? VRE indemnity covers all claims Does VRE require the Contractor only provide those CGL or railroad liability insurance limits? If yes, then does VRE require the Contractor be at risk for the difference between the $1M/$2M CGL or railroad liability insurance liability limits and the $5M indemnity obligation as set forth in Section 26.3B.? See Addendum No. 2, page 149R. 22 of 28

23 105. What should the Contractor reasonably expect its indemnity obligations to be under this Contract; limited at $5M, as set forth in Section 26.3B. or unlimited, as set forth in Section 39, Indemnification of the General Terms and Conditions? (The Contractor will need to know the answer to this question in order to determine what insurance the Contractor needs to purchase in order to transfer the liability risk associated with the Contractor s indemnification obligations to a third party insurance carrier, and thus add the price of that insurance, if it is available, to its compensation amount.) See Addendum No. 2, page 149R To the extent there is coverage for the Contractor pursuant to the VRE provided liability Insurance plan, does VRE require the Contractor to be indemnified by the insurance carrier for all claims arising out of the Contract services in excess of $5M, up to the $250M annual aggregate amount of the insurance, except for claims of employees of the Contractor or Subcontractors, which are excluded from the VRE provided insurance coverage? See Section 26.3A Who covers the gap in the insurance between the $1M per occurrence limits of the Contractorprovided CGL or railroad liability insurance and the $5M set forth in Section 26.3C.? See Addendum No. 2, page 149R. Section 29. Attachments Attachment A General Terms and Conditions 108. With respect to Section 5, Key Personnel, and Section 17, Subcontracts, given that this Contract could span up to fifteen (15) years, it is reasonable to assume changes will occur in key staff during the term of the Contract. Therefore, will VRE consider adding language to Sections 5 and 17 to clarify that VRE will not unreasonably withhold approval of a substitution of Key Personnel? No. It is understood that VRE will not unreasonably withhold approval of substitution of key personnel Further, in the event that a substitute Key Person is ultimately disapproved by VRE, the sanction of immediately terminating the Contract seems disproportionate. As a result, will VRE delete Paragraph 5.e from the General Terms and Conditions? No. There is an opportunity to cure the problem with other personnel. 23 of 28

24 110. Section 9, Payment Terms, creates a correlation between the payments received from VRE and the ones made to all Subcontractors. While it is commendable that the Contractor be responsible to make prompt payment to its Subcontractors, there should be no correlation between the payments received from VRE and the payments made by the Contractor to its Subcontractors. The Contractor and its Subcontractors may very well agree, for various reasons, to terms of payment that satisfy and please both of them, without any correlation with the payments received from VRE. Additionally, the payment bond provides sufficient sanction should the Contractor fail to pay its Subcontractors within a reasonable time. Thus, will VRE consider deleting the following portion of Section 9 and replacing it with the language below? Payment of subcontractors shall occur within seven (7) days of receipt of payment by VRE for work completed and approved expenses. Failure to pay subcontractors in an expedient manner may result in the use of the payment bond and/or termination of the Contract. Payment of Subcontractors shall be made within a reasonable delay, in accordance with the terms of payment agreed upon with the Subcontractors. Failure to pay Subcontractors in accordance with the foregoing may result in the use of the payment bond. Will VRE also consider the deletion of Section 19, Payment to Subcontractor, as it is redundant with Section 9 and might interfere and/or be incompatible with the terms and conditions agreed upon between the Contractor and its Subcontractors? See Addendum No. 2, pages 7R of 39 and 12R of With respect to Section 14, Termination for Default, the termination for default procedure should contain notice requirements with a minimum delay to cure, which equitably will provide the Contractor with the opportunity to take steps to remedy its default. To allow VRE to terminate the Contract without first providing the Contractor with a reasonable period of time to take steps to remedy its default would deprive the Contractor of its right to fundamental fairness, and would create insecurity in the relationship between the parties and could therefore jeopardize the successful performance of the work. Moreover, for similar reasons, a default that entitles the parties to terminate the Contract shall have a significant impact. Will VRE thus refer to it as a material breach of the Contract? No. As a practical matter, VRE will not terminate for immaterial reasons. 24 of 28

25 112. As stated above, and in accordance with industry practices, the Contractor should be given the opportunity to cure the default. Time to cure the default should be at least thirty (30) days or, if not curable within said delay, reasonable steps to substantially cure the default shall be taken during such time period. Will VRE modify Section 14 as suggested below? Either Party may terminate the Contract, without further obligation, for the default of the other party, or its agents or employees with respect to any agreement or provision contained herein, whenever the default caused a material breach to the Contract. The written notice shall specify the default, the material breach and the expected effective date of termination and shall be delivered to the Contractor a minimum of thirty (30) days prior the expected effective date of termination. The Contractor shall have the right to cure the default within thirty (30) days or, and thereby avoid the termination." No Section 16, Assignment of Contract, states that the Contract shall not be assignable, sublet or transferable by the Contractor, in whole or in part, without the prior consent of VRE. In regards to the Contractor s business structure, it is suggested that for an assignment to an affiliate, a written notice from the Contractor should be sufficient. Therefore, will VRE add the following wording to this Section? However, the Contract is assignable, sublet or transferable by the Contractor, in whole or in part, to an affiliate of the Contractor, with a prior written notice to VRE. No Will VRE revise Section 22, Warranty, considering that the Contractor would not be responsible for procurement? However, should the Contractor provide materials and equipment; it would typically agree to give VRE the benefit of any warranty provided by a Subcontractor. Can VRE agree to change Section 22 for the Contractor to provide VRE with the most favorable warranty it can obtain from Subcontractors? No. 25 of 28

26 115. Nothing in Section 39, Indemnification provides for VRE s liability in regards to its acts, omission or negligence. It is usual to have this type of clause mutual in the Contract. Will VRE delete the following language from Section 39 and replace it with the language provided below? The Contractor shall not seek to hold liable the VRE, or any of its officers, agents and employees for any claims, judgments, losses, and expenses of any nature whatsoever arising out of the Contract or arising out of the activities funded in whole or in part by the Contract. VRE shall defend, indemnify, save and hold harmless the Contractor, and its agents, officers and employees against all claims and liability including all cost and expenses, arising out of, in all or in part, the acts or omission of VRE, its agents or employees. No. VRE is already providing a generous indemnity The RFP contains no specific provision regarding environmental liability, although it seems that VRE s intent is not for the Contractor to be responsible for existing environmental liabilities (before the Contractor starts performing the Contract). Can VRE confirm this understanding is accurate? To clarify this, will VRE add the following language to Section 39, Identification? VRE shall defend, indemnify, and hold harmless the Contractor, its officers, employees, agents or Subcontractors, from liability for any loss or damage to the environment that occurred or existed prior to the date that the Contractor occupies, accesses or assumes responsibility of each such part of the service property, except where the loss or damage is attributable to an act or omission of the Contractor, its employees, agents or Subcontractors. The current language addresses this issue With respect to Section 39, Indemnification, the Contractor's current liability under the General Terms and Conditions is not limited, presenting an inordinate risk to the Contractor and which may have an adverse impact on price. As it is common practice in the industry, it is suggested to cap the aggregate liability of the Contractor under the Contract to 100% of the total annual Contract price. Will VRE confirm that this change is acceptable? No. 26 of 28

27 118. In no event should the Contractor be liable for special, indirect, incidental or consequential damages, resulting from the performance or its nonperformance, or delay in performance of its obligations under the Contract or VRE s termination of the Contract with or without cause, or VRE s suspension of the services. Will VRE add the following language to Section 39 of the General Terms and Conditions? In no event shall the parties be liable for special, indirect, incidental or consequential damages, including loss of profits or revenue. Notwithstanding anything to the contrary contained herein or in any other contractual document, the Contractor s liability under the Contract shall be limited to 100% of the annual Contract value. No Section 39, Identification, appears to be very broadly written to include not only tort claims such as negligence, but it also broad enough to cover any breach of Contract claim. For example, does VRE intend, by the first sentence in Section 39, that if VRE does not pay the Contractor for services or fails to provide the Contractor with the commuter rail operations liability insurance, the Contractor would have no recourse against VRE? Section 39 does not address Contract breach issues Does VRE intend for the Contractor to be held liable to VRE for 100% of the damages if the Contractor is only 1% at fault in arguably causing a claim? Each situation must be assessed at the time. VRE will not theorize about how claims involving multiple parties will be handled Should the Contractor purchase its own insurance coverage to transfer the liability risk associated with claims associated with its Subcontractors and/or agents and add the cost to its price? This is the Contractor s decision. 27 of 28

28 122. Are the current mechanical employees covered under Railroad Benefits? Will the new Contractor be required to provide Railroad Benefits? Assuming that there is a 13c agreement in place; can VRE confirm that the Contractor would not be able to displace their current benefits? See the response to Question No Concerning Section 50, Davis Bacon Act, are there any wage determinations that have been issued that cover the existing employees in performance of the RFP scope of services? If so, can VRE provide said wage determinations with an explanation as to the scope of services which they apply? No The RFP is silent as to the responsibility of the Contractor in the event of a change in law or regulations that would impact the costs to perform the services under the Contract. Will VRE add the following language to Section 66 of the General Terms and Conditions? If any changes are made to any law, regulation, code or standards, affecting the Services as described in this Contract between the date of submission of the Contractor s Proposal and during the term of the Contract (including any options, if exercised), and if such changes cause an increase in the Contractor s cost of performance, then an equitable adjustment in the Contract price and/or the time allowed for performance of the Contract shall be negotiated in accordance with this section. This is standard practice in the industry and Offerors will only have been able to take into account in their price and schedule those laws and regulations enacted at the time of submission of Proposals, Offerors should not be penalized by any such change in law or regulations. VRE will evaluate the changes as they occur to determine potential impacts, if any, and amend the Contract accordingly. Section 30. Appendices 125. Does Appendix 12 include a schedule of furnishings? If no, can VRE provide the appropriate schedule? If yes, should Offerors include office furniture, break room furnishings and amenities, office equipment and amenities (copiers, printers, shredders...) etc. and include the cost in mobilization? VRE will provide furniture items (tables, chairs, desks, etc.). The Contractor shall provide office equipment for their use (copiers, printers, shredders, etc.). 28 of 28